Smith -v- SWM Limited [2017] JRC 026 (17 February 2017)

Smith -v- SWM Limited [2017] JRC 026 (17 February 2017)

Litigation privilege cannot be claimed over the Grant Thornton Report because it was created pursuant to the exercise of regulatory powers by the Jersey Financial Services Commission, whose purpose was regulatory and not adversarial litigation. The dominant purpose of the report was not to obtain legal advice or to conduct litigation, but to assist the regulator in discharging its statutory functions. Regulatory investigations are not adversarial proceedings and do not attract litigation privilege.

Citation
[2017] JRC 026
Parties
Plaintiff: Plaintiff (name not specified); Defendant: SWM Limited
Jurisdiction
Jersey
Judgment Date
17 February 2017
Procedural Posture
Civil / Interlocutory Application Regarding Privilege
Outcome
Application for litigation privilege over the Grant Thornton Report refused.
Legal Topics
Litigation Privilege, Disclosure, Regulatory Investigations, Legal Professional Privilege
Civil Procedure Financial Regulation Litigation Privilege Disclosure Regulatory Investigations Legal Professional Privilege

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Parties

Plaintiff (name not specified)

Plaintiff

SWM Limited

Defendant

Procedural Posture

Civil / Interlocutory Application Regarding Privilege

Legal Issues

  1. 1 Whether the Grant Thornton Report obtained under regulatory direction is protected by litigation privilege and can be withheld from disclosure

Ratio Decidendi

Litigation privilege cannot be claimed over the Grant Thornton Report because it was created pursuant to the exercise of regulatory powers by the Jersey Financial Services Commission, whose purpose was regulatory and not adversarial litigation. The dominant purpose of the report was not to obtain legal advice or to conduct litigation, but to assist the regulator in discharging its statutory functions. Regulatory investigations are not adversarial proceedings and do not attract litigation privilege.

Court Disposition

Application for litigation privilege over the Grant Thornton Report refused.

Orders

  • The Grant Thornton Report cannot be withheld on the basis of litigation privilege.
  • The defendant may review other documents for privilege on a case-by-case basis.